HIGH COURTS AND ECONOMIC GOVERNANCE IN ARGENTINA AND BRAZIL

Reviewed by Roger Handberg, Department of Political Science, University of Central Florida. roger.handberg [at] ucf.edu

pp. 606-608

This is one of the strongest works I have seen in the area of comparative judicial behavior and process over the past 30 years. Dr. Kapiszewski has produced a work that articulates a clear research design, explains what she is doing, and then proceeds to follow through on her intentions. The book is a detailed examination of the high courts of Argentina and Brazil with regards to the area of economic policy, a subject of great stress and disagreement within both societies. Both states emerged from periods of military rule to confront the realities of extreme economic crisis (Argentina defaulted on its national debt) which disrupted national politics and created a continuing series of crises. Courts became central players in these events as the process of judicialization spread even to civil law systems. This volume analyzes how each political system responded to the crises and what role the courts had in that response. In each case, the high court held the potential to be a major disruptor of the political branches’ efforts to deal with the economic crises which at several points appeared unending.

Kapiszewski lays out a straight forward model of what she terms court character as the critical explanatory variable for assessing the relationship between the high court and the political branches. In developing the concept of court character, she takes one on a grand tour of the comparative court literature across the globe. This literature overview is in itself worth the cost of the book since the relevant references through 2012 are nicely pulled together in a single location; one may disagree with her characterizations in some instances but the literature is there. Four components comprise the court character variable: level of high court stability, level of high court perceived legitimacy, level of high courts professionalism, and level of high court institutional cohesion. Each measures a facet of how a high court operates both internally and within the larger society.
In both Argentina and Brazil, the national economy has undergone some major traumas leading to a reworking of the basic social contract from a quasi-welfare state at least in the public sector to a more market driven approach. Courts become critical players because of their potential for disrupting the agendas of presidential administrations. The goal of the current administration thus becomes one of contrasting actions. First, the government pushes to centralize judicial power at the level of the high court in order to reduce lower courts’ capacity to disrupt the government’s economic program. This in a civil court system with no power of precedent meant that the government routinely and aggressively appealed virtually every adverse decision [*607] to the high court. By doing so, the high court could be swamped by a case load unimaginable in an American context. Second, the current government worked to control the high court itself through control over who becomes a judge or who was allowed to continue on the bench. The goal is to develop a court which helps foster governance especially in the arena of economic policy which otherwise could be so volatile. The fascinating aspect was the dramatically different approaches taken in each country.

In Argentina, successive presidents actively manipulated court membership. Justices were forced off the court through resignation or removal based on their affiliations. The size of the membership was actively changed in pursuit of a compliant majority. Each president arrived in office with the expectation that the court could and would be changed to accommodate their interests. Partisan and personal ties explained most appointments – the result is a court increasingly dysfunctional internally with minimal interaction or leadership among its members and little cohesion as an institution. The deliberate effort by the government is to intimidate the court and its members; political reprisal being the name of the game. Despite these efforts, confrontations often erupted which led to executive defiance of court decisions, undermining court and government legitimacy. Policy instability came to characterize the situation, disrupting national politics. By contrast, Brazil with an equally fractious history including military coups (similar to Argentina) has embarked on a different approach. The choice is to develop a professionalized court; one Kapiszewski terms a “Statesman Court.” The appointment of judges is based on professional criteria including prior judicial experience with expectations that partisan and personal linkages to the president would not be common or expected among appointees. The result is a court that is more stable, legitimate and cohesive institutionally. The court however ruled in what might be termed a pragmatic fashion, reducing potential confrontations. The result became a situation of relative moderation in that both the court and the government over time got what they wished. Kapiszewski analyzes a series of cases involving economic policy supplemented by interviews at each court along with analysis of public commentary (newspapers) regarding the courts and their decisions. The tools of political science analysis are employed systematically to analyze court and judge decisions in selected economic governance cases. The impact of internal court processes or their lack is assessed in term of effect on outcomes. Both courts – but especially the Brazilian court – employs their procedural tools strategically, but in the Argentine case the internal divisions within the court hinder its effectiveness.

Professor Kapiszewski has provided a major contribution to the comparative courts literature especially in her carefully crafted analysis of two very distinct even divergent courts. Both reflect their immediate past history but [*608] also the larger currents which wash over courts in the new century, especially the question of what the rule of law means in practice. The analysis here is part of a growing stream of work that is impacting the study of American courts. I recommend it highly as a real addition to the study of appellate courts but lament the price of the volume which will limit its impact.